February 11, 2013

D.C. Circuit Judge Wants Clarification of Dismissal of Grand Jurors

A local court official in Washington and a former federal prosecutor here, accused of abruptly removing a grand juror without consulting a judge, cannot be sued, the U.S. Court of Appeals for the D.C. Circuit has ruled, ending nearly a decade of litigation over the independence of grand juries.

The grand juror, Peter Atherton, for many years waged a pro se legal fight after his dismissal from a grand jury in D.C. Superior Court. Atherton, represented recently by a team from Foley & Lardner, said his public service was unlawfully terminated in 2001 without judicial oversight. He claimed he was dismissed because he was asking too many questions of the prosecution.

Atherton had served only three days before a D.C. Superior Court official, Suzanne Bailey-Jones, told him that his service was over. An assistant U.S. Attorney, Daniel Zachem, had reported other jurors' concerns about Atherton to Bailey-Jones. Panel members accused Atherton of being disruptive—unwilling or unable to follow the rules. Atherton said his fellow grand jurors were too swiftly voting without a complete understanding of the elements of the alleged offenses.

The D.C. Circuit in 2009 revived the case, saying that the prosecutor and court official did not have absolute immunity in the lawsuit. But last week, the court, after additional proceedings at the trial level, said Zachem and Bailey-Jones have qualified immunity. Writing for the D.C. Circuit panel, Judge Janice Rogers Brown said Atherton "failed to convince us that he had a clearly established constitutional entitlement to a more comprehensive termination process." The court's ruling is here.

The "procedural due process owed a grand juror seems as unclear today as it was over a decade ago when Atherton was dismissed" from service, Brown wrote. The panel judges said Atherton's constitutional rights were not "clearly established."

At the time, Judge Judith Rogers noted in a concurring opinion, no local rule or court order "explicitly authorized" Bailey-Jones to summarily dismiss a grand juror. The procedure, however, was changed after Atherton's dismissal. No grand juror can be dismissed without the consultation of the chief judge of Superior Court.

The procedure's changed, Rogers said, but there's still no clarity. Rogers questioned the scope of the "consultation" that is part of the revised dismissal process. "Does the Chief Judge make the dismissal decision? If not, who does?" Rogers wrote.

Rogers, a former judge on the D.C. Court of Appeals, the highest local court in Washington, is calling for clarification over the procedures for dismissing a grand juror, saying clarity "would be in the interests of protecting the integrity and independence of the grand jury."

Atherton's suit, Rogers said, "uncovered the absence of a clear procedure for dismissing a grand juror."

"Little appears to have been written on the subject of the dismissal of a grand juror, an action, which, depending on who takes it, implicates and could possibly threaten the heralded independence of the grand jury," Rogers wrote.

A lawyer for Atherton, Benjamin Dryden, a Foley associate in Washington, declined to comment on the ruling. A Superior Court official was not immediately reached today for comment about the D.C. Circuit ruling.